Madras High Court
K.Jayavel [Died vs D.Mangaladevi on 22 January, 2025
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
CRP NPD.No.55 of 2025
THE HIGH COURT OF JUDICATURE AT MADRAS
Date : 22.01.2025
CORAM:
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
CRP NPD No.55 of 2025 & CMP.No.468 of 2025
K.Jayavel [died]
Gowri . . . Petitioner
Versus
D.Mangaladevi . . . Respondent
PRAYER : Petition filed under Section 115 of Code of Civil Procedure to set
aside the Order dated 15.10.2024 made in I.A.No.02 of 2024 in
H.M.O.P.No.120 of 2017 passed by the Family Court, Krishnagiri.
For petitioner : Mr.K.Venkateswaran
ORDER
Challenging the Order allowing the application filed for impleading the
mother-in-law of the applicant in I.A.No.2 of 2024 to pursue the application
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filed to set aside the exparte decree of divorce, the present Civil Revision
Petition has been filed.
2. Brief background of the case is as follows :
The respondent herein has married one Jayavel on 12.10.2010 as per
Hindu customs. As matrimonial dispute arose between them, HMOP.No.120
of 2017 came to be filed by the husband against the wife, wherein an exparte
decree came to be passed against the respondent on 26.03.2018. However, the
respondent has filed an application to set aside the exparte decree in I.A.No.1
of 2021. During the pendency of the said application, after service of notice,
the husband of the respondent died on 26.01.2023. At this stage, an
application has been filed to implead the legal representatives of the husband
to continue the proceedings, which was allowed by the trial Court.
Challenging the same, the present revision has been filed.
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3. The learned counsel appearing for the petitioner would mainly
submit that as the husband has died, the petition filed by the petitioner
automatically abates, since the divorce decree is personal in nature. Therefore,
impleading is not permissible.
4. I have perused entire materials available on record. As far as filing
of the application under Order IX Rule 13 of Code of Civil Procedure by the
wife after the death of her husband is concerned, the issue is no longer res
integra. In the judgment in A.Lakshmi Vs. K.Saraswathi Ammal reported in
[1996] 6 SCC 371, the Supreme Court has held that the wife has got the right
to prosecute the divorce petition as against the legal heirs of her husband
under Order 9 Rule 13 of Code of Civil Procedure and it has been further held
that even though the husband passed away, since the decree is operating
against the wife, she is entitled to prosecute the application filed under Order
9 Rule 13 of Code of Civil Procedure after the death of her husband as against
the legal heirs of her husband.
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5. In the judgment in Yallawwa Vs. Shantavva reported in [1997] 11
SCC 159, the Apex Court had confirmed the Order of the High Court in
setting aside the Order of the trial Court which had dismissed the application
filed by the wife to prosecute the application to set aside the exparte decree.
That apart, this Court in Jegadeesan [died] P.Jayalakshmi Vs. Gomathi
[CMSA [MD] No.1 of 2013 dated 27.04.2023], considering the above settled
position, has held that when there is an exparte decree for divorce, aggrieved
spouse would be entitled to file an application under Order 9 Rule 13 of Code
of Civil Procedure as against the legal heir of the decree holder and prosecute
the same and once the exparte decree is set aside, there is no decree for
divorce and the proceedings have to be dismissed as abated. Similarly in
CRP.No.2143 of 2022, dated 04.10.2024 [Sangeetha Vs. R.Chinnasamy
[died], R.Gopiyammal], this Court has held that application under Order 9
Rule 13 of Code of Civil Procedure is maintainable.
6. In view of the above settled position of law, I do not find any merits
in this revision petition.
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7. Accordingly, this Civil Revision Petition is dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
22.01.2025
Index : Yes / No
Internet: Yes
Speaking/non speaking order
vrc
To,
The Judge,
Family Court, Krishnagiri.
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N. SATHISH KUMAR, J.
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22.01.2025
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